Kirkman Corp. v. Owens

Appellant corporation commenced an action against respondents, who were copartners, alleging that it had since February 1, 1941, been the owner of certain nursery stock, that prior to February 2, 1943, respon

Respondents denied all the material allegations of the complaint and also set up as a special defense that they had performed labor and furnished materials in the growing, irrigating, cultivation, fertilizing, digging, hauling, sorting and preserving of said nursery stock from May, 1942, to the filing of complaint (Feb. 16, 1943), and that they were detaining said nursery stock by virtue of a lien for such labor and material under section 3051 of the Civil Code. Respondents set forth as an additional defense that appellant’s claim of ownership was based upon a certain written contract between it and one M. Nishimura, a minor of eighteen years, and that said minor had disaffirmed said contract with appellant and appellant had no lawful claim to said nursery stock.

Following the trial of the action, the court found that it was not true that plaintiff was the owner of the nursery stock; that prior to February 5, 1943, respondents lawfully came into possession of same, that on February 5th and also on or about February 9, 1943, appellant demanded possession thereof but respondents refused to deliver it to appellant, but it was not true that respondents on February 2, 1943, or at any other time converted said nursery stock; that it was not true that appellant had been damaged in the sum of $5,000, or any other sum. The court found further that during the period between May 11, 1942, and the filing of the complaint, respondents had at the special instance and request of appellant performed the labor and furnished the materials specified in the special defense as hereinbefore set forth, of the reasonable value of $1,044.64, and that respondents had detained said nursery stock under a valid claim of lien for said labor and materials and had offered to deliver said nursery stock to appellant upon payment of the amount of their said claim, but that appellant had refused to pay said claim or any part thereof; that all right or title of appellant in said nursery stock is subordinate to the claim of lien of respondents. The conclusions of law were that appellant corporation should take nothing by reason of said action and that respondents

We glean from the evidence in the case that appellant entered into a contract with the .Nishimuras, father and son, under which the former was to furnish seeds for the growing of special nursery root stock; that the Nishimuras were to plant said seeds and raise the stock on land occupied by them, and, at the proper time, bud same to peaches, etc., with buds furnished by appellant; that title to the said nursery stock was at all times to remain in appellant, and at the proper time the budded trees were to be delivered to appellant; that before this contract was fully performed the Japanese were evacuated, and the Nishimuras leased to respondents all of their land except a portion upon which the nursery stock in controversy was growing; that thereafter respondents took care of said nursery stock, and eventually dug same and “heeled it in” at Smyth’s nursery yards, where further labor was performed upon it; that appellant eventually demanded delivery of said stock to it, but that respondents refused to make delivery until paid the sum of $1,044.64 which they claimed on account of labor and materials furnished by them, in the growing, preserving, digging, hauling and caring for same from the time of the evacuation of the Japanese to date; that appellant refused to pay the amount claimed by respondents or any amount other than $14, claiming that respondents had undertaken to complete the contract entered into by appellant with the Nishimuras, and that, as appellant had made certain money advances to the Nishimuras, there was a balance of but $14 unpaid under said contract. Respondents denied that they had assumed to perform that contract and contended that at appellant’s request they had performed the services and made the expenditures for which they claimed compensation. They therefore claimed a lien upon said nursery stock and refused delivery of same to appellant. Appellant then commenced this action. Respondents made no claim of ownership of said nursery stock and in fact conceded in their written lien that appellant was the owner or reputed owner of same; and no one else has laid claim to same.

On this appeal appellant attacks a number of rulings of the trial court upon offers of testimony. Appellant offered in evidence a written agreement under the terms of which one M. Nishimura agreed, among other things, to grow certain

“I would offer to prove by the testimony of Mr. Kirkman that the seed and the growing of trees mentioned in those plaintiff’s Exhibit A and plaintiff’s Exhibit D are the same trees that are mentioned in the complaint, that Mr. Kirkman at all times was familiar with the planting, with the growth, with the budding, and that those seeds and buds developed into the trees that are mentioned in the Complaint. ’ ’

Respondents again objected and the objection was sustained by the court.

Curiously enough, respondents themselves offered in evidence a purported disaffirmance by M. Nishimura, a minor, of the very contract which they had been successful in keeping out of the record, which said disaffirmance contained the detailed description of the real property on which the nursery stock was grown. This was admitted by the court over appellant’s objection. It is difficult to understand how the disaffirmance could be admissible and the contract itself not admissible, especially since both were pleaded by respondents. Appellant claimed the nursery stock agreement was with M. Nishimura, the father, and respondents claimed it was with M. Nishimura, the son, a minor of the age of eighteen years. Respondents evidently sought to show appellant’s lack of title to the nursery stock by offering the disaffirmance in evidence. It is extremely doubtful whether third persons such as respondents could rely upon the disaffirmance, but even if they could, this purported disaffirmance does not meet the requirements of section 35 of the Civil Code which provides that a contract made by a minor “may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent.” There is no evidence in the record of any such restoration of consideration or payment of the equivalent to appellant. The record merely shows that the Japanese were evacuated from the territory in 1942 and could no longer care for said nursery stock, and the purported disaffirmance merely tended to show that M. Nishimura, the minor, abandoned any interest in said nursery stock. It could not have the effect of depriving appellant of such title to the stock as it may have had.

Appellant contends that the rights of respondents in

As hereinbefore set forth, the trial court found that respondents had detained said nursery stock upon a valid claim of lien in the sum of $1,044.64 for labor and material performed and furnished by respondents at the special instance and request of appellant, and that appellant had refused to pay the amount of said lien. Appellant vigorously attacks this finding and contends (1) that under sections 3051 and 3052 of the Civil Code, respondents could have no lien on the nursery stock; (2) that if respondents ever had a right of lien it was for a lesser amount than the amount claimed and that found by the court; and (3) that by claiming an excessive lien respondents waived any right to a lien.

The portion of section 3051 of the Civil Code applicable to the lien claimed by respondents reads as follows:

“Every person who, while lawfully in possession of an article of personal property renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service. ’ ’

Under said provision it was held by this court in Golden State Orchards v. Harter, 93 Cal.App. 390 [ 269 P. 735 ], that one who rendered services in the drying and processing of fruit was entitled to a lien on the fruit and the possession thereof until his proper charges were paid. (See, also, People v. Photo, 45 Cal.App.2d 345 [ 114 P.2d 71 ].) Such a lien is, however, dependent upon possession, and the law is well settled that if a lien is lost by relinquishment of possession it cannot be revived by any subsequently reacquired possession. (People v. Photo, supra; Davis v. Young, 75 Cal.App. 359 [ 242 P. 743 ].)

We do not believe there is any merit in appellant’s contention that in claiming an excessive lien respondents waived the right to any lien. Appellant did not offer to pay respondents for the portion of their services for which they might properly have claimed a lien, but claimed that respondents had assumed the obligations of the Nishimura contract and that they must accept the amount that would be due Nishimura for the completed contract after deducting certain payments which had been made by appellant to Nishimura. Respondents denied any connection with the Nishimura contract and declined the amount of $14 offered by appellant. If respondents were entitled to a lien they were entitled to retain possession of the nursery stock until they were offered the amount to which they were entitled. The mere fact that they may have mistakenly believed, or have been advised, that they had a lien for the entire amount claimed to be due for the services performed by them in caring for the nursery stock, would not defeat their right to a lien in the amount to which they were properly entitled, even though they filed a lien for a larger amount.

The errors hereinbefore set forth require a reversal of the

The judgment is reversed.

Adams, P. J., and Thompson, J., concurred.

A petition for a rehearing was denied February 2, 1944.